Tag: Privilege Log

1
Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)
2
Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)
3
In re Aenergy, S.A. (S.D.N.Y. 2020)

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)

Key Insight: Communications between a party and its hired legal consultant are work product if they are generated in anticipation of litigation. Work product containing mental impressions, conclusions, opinions, or legal theories concerning the litigation is rarely discoverable and enjoy “near absolute immunity.” Documents subpoenaed from the legal consultant still retain work product privilege.

Instead of providing privilege logs, the court allowed the legal consultants to categorically withhold or redact privileged communications so long as they provided a certification that none of withheld or redacted documents were distributed to or reviewed by any other third parties. In lieu of such certification, the legal consultants would have to produce a privilege log.

Nature of Case: Property, Eminent Domain

Electronic Data Involved: Email, Electronic Communications

Case Summary

In re Aenergy, S.A. (S.D.N.Y. 2020)

Key Insight: The primary purpose of an email must be to secure legal advice to be privileged. It is not enough to copy counsel on the email. If requests in the email are directed to non-legal employees and counsel does not weigh in, it cannot be said that the primary purpose is to seek legal advice. When it is unclear whether a document is providing legal advice or is driven by business or negotiation considerations, attorney-client privilege will not be extended to the document.

Categorical privilege logs must provide sufficient information to evaluate the privilege claim. The party’s vague and repetitive privilege log along with its attempts to claw-back unprivileged documents led to a loss of credibility with the court. The court ordered a re-review of its privilege determination with a revised document-by-document privileged log.

Nature of Case: Fraud, Contract Dispute

Electronic Data Involved: Email

Case Summary

Copyright © 2022, K&L Gates LLP. All Rights Reserved.